United States v. Dwayne Moody ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0490n.06
No. 12-3924
FILED
UNITED STATES COURT OF APPEALS May 15, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
DWAYNE A. MOODY, )
) OPINION
Defendant-Appellant. )
)
BEFORE: DAUGHTREY, ROGERS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Dwayne A. Moody appeals the district court’s order finding
him ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). He pled guilty to a cocaine-
related offense and was sentenced to 71 months in prison. Unfortunately for Moody, he is ineligible
for a sentence reduction, so we affirm.
I. Background
In 2008, Moody pled guilty to conspiracy to possess with intent to distribute 123.9 grams of
cocaine powder and 127.3 grams of crack cocaine in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)
(2008). Due to the amount of crack, he was subject to a mandatory minimum sentence of 120
months. See id. § 841(b)(1)(A)(iii). At his sentencing hearing, the district court, after apparently
determining that the appropriate base offense level was 30, applied a 3-level downward adjustment
for acceptance of responsibility and awarded a 3-level downward departure pursuant to the
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USA v. Moody
government’s substantial assistance motion brought under U.S.S.G. § 5K1.1. The resulting total
offense level was 24, which when combined with Moody’s criminal history category of II yielded
a guideline range of 57 to 71 months. Moody was sentenced to 71 months in prison. Although he
was subject to a 120-month mandatory minimum sentence, the government’s substantial assistance
motion was apparently intended to authorize the court to depart from the minimum.1
In 2010, Congress enacted the Fair Sentencing Act, which increased the amount of crack
needed to trigger mandatory minimum sentences. See 124 Stat. 2372 (2010). In accordance with
instructions in the Act, the Sentencing Commission passed Amendment 750 to the Sentencing
Guidelines, which reduced the base offense levels for crack cocaine offenses. Amendment 759 made
the changes in Amendment 750 retroactive.
In 2012, Moody filed a motion requesting a sentence reduction in light of the amended
Guidelines. The judge who sentenced Moody having assumed senior status, Moody’s case was
assigned to a different judge. That judge denied the motion, finding that Moody was ineligible for
a reduction because he was subject to a mandatory minimum sentence. Moody appealed.
1
Technically, § 5K1.1 only allows the court to depart from the guideline range; 18 U.S.C.
§ 3553(e) authorizes the court to depart from the mandatory minimum. Melendez v. United States,
518 U.S. 120, 124 (1996). Although the statutory provision was never mentioned at the sentencing
hearing, it appears the government intended to authorize the court to depart from the mandatory
minimum. See id. at 126 n.5 (stating that “an express reference to § 3553(e) is not necessarily
required before a court may depart below the statutory minimum” as long as the government “in
some way indicate[s] its desire or consent that the court depart below the statutory minimum”).
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II. Analysis
A. Eligibility for a Reduction
We review de novo a district court’s conclusion that a defendant is ineligible for a sentence
reduction. United States v. McClain, 691 F.3d 774, 777 (6th Cir. 2012).
A district court generally cannot modify a sentence of imprisonment once it has been
imposed. See 18 U.S.C. § 3582(c); Dillon v. United States, 130 S. Ct. 2683, 2690 (2010). However,
there is an exception to the general rule “in the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In short, to determine whether Moody is eligible
for a sentence reduction we must answer two questions: (1) was his sentence “based on” a sentencing
range that has been lowered by Amendment 750; and (2) would a sentence reduction comply with
the applicable policy statements? We answer the first question “yes” but the second “no.”
1. “based on” inquiry
To ascertain whether a sentence was “based on” a sentencing range that was subsequently
lowered, we are bound by United States v. Hameed, 614 F.3d 259 (6th Cir. 2010), which requires
us to “look to what the district court actually said and did at the original sentencing” to determine
“whether the original sentence was, in fact, based on such a range.” See id. at 264 (quotations
omitted). Here, the district court exclusively discussed the guideline range, and it never mentioned
the mandatory minimum sentence. Amendment 750 reduced Moody’s guideline range from 57-71
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USA v. Moody
months to 46-57 months. Clearly, then, Moody’s sentence was “based on” a sentencing range that
was subsequently lowered.
2. policy statement inquiry
But even though Moody’s sentence was “based on” a sentencing range that was subsequently
lowered, a sentence reduction must still comply with the Sentencing Commission’s policy
statements. One applicable policy statement says that a sentence reduction is not allowed if the
relevant amendment “does not have the effect of lowering the defendant’s applicable guideline
range.” See U.S.S.G. § 1B1.10(a)(2)(b) (emphasis added). The Guidelines provide that “[w]here
a statutorily required minimum sentence is greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be the guideline sentence.” § 5G1.1(b). We
have repeatedly said that “where a mandatory minimum sentence applies that exceeds the otherwise
applicable guideline range, the mandatory minimum sentence becomes the applicable guideline
range.” United States v. Williams, No. 12-3353, 2013 WL 331579, at *5 (6th Cir. Jan. 30, 2013);
see also McClain, 691 F.3d at 779-80 (“The Sentencing Commission’s policy statements explicitly
provide that the mandatory minimum becomes a defendant’s applicable range.”); United States v.
Johnson, 564 F.3d 419, 423 (6th Cir. 2009) (“Where a mandatory minimum sentence exceeds the
otherwise applicable Guidelines range . . . it replaces that Guidelines range.”); cf. Hameed, 614 F.3d
at 268 (“[T]he guideline range resulting from [the] base offense level was not ‘applicable’ because
it was not the correct point from which the departure should have been measured.”).
Since the 120-month mandatory minimum sentence was greater than the guideline range, the
mandatory minimum became the “applicable guideline range” for purposes of U.S.S.G.
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§ 1B1.10(a)(2)(B). The Sentencing Commission, of course, has no power to reduce a mandatory
minimum sentence set by Congress, and Amendment 750 has no effect on the mandatory minimum
for Moody’s crime. Therefore, Moody is ineligible for a sentence reduction under § 3582(c)(2)
because a reduction would be inconsistent with an applicable policy statement.2 Furthermore, the
Fair Sentencing Act does not apply retroactively to reduce the mandatory minimum for Moody’s
crime because he was sentenced before the Act’s effective date. See United States v. Hammond, 712
F.3d 333, 336 (6th Cir. 2013) (per curiam).
Of course, this analysis likely provides little consolation to Moody, given that the district
court never mentioned the mandatory minimum sentence during his sentencing hearing, and it
certainly must have appeared to him that the mandatory minimum played no role in his sentence.
In fact, the district court made two major mistakes while sentencing Moody. After determining the
guideline range based on Moody’s total offense level, his criminal history category, and his
assistance to the government, the court should have recognized that because the mandatory minimum
was greater than the top of that guideline range, it necessarily became the new guideline range. See
2
After briefing was complete, Moody sent us a letter contending that a recent case from a
sister circuit found defendants eligible for a reduction on “the exact same facts” as his case presents.
See United States v. Wren, 706 F.3d 861 (7th Cir. 2013). But Moody has ignored a crucial
distinction between his case and Wren. The original guideline ranges of the defendants in Wren were
greater that the applicable mandatory minimum. See id. at 862. Therefore, in Wren the mandatory
minimum did not become the “applicable guideline range,” and the defendants were eligible for a
sentence reduction. See id. at 864. The Seventh Circuit explicitly recognized that defendants whose
original guideline ranges were lower than the mandatory minimum are not eligible for a reduction.
See id.; see also Williams, 2013 WL 331579 at *6. If Moody’s original guideline range had been
greater than the mandatory minimum, he too might be eligible for a reduction. But it wasn’t, and
he isn’t.
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USA v. Moody
U.S.S.G. §§ 1B1.1(a)(8); 5G1.1(b). If appropriate, the court should then have departed downward
from the mandatory minimum under 18 U.S.C. § 3353(e). See United States v. Stewart, 306 F.3d
295, 332 (6th Cir. 2002). When determining the extent of the departure, the court should not have
been influenced by Moody’s acceptance of responsibility but instead should have based the departure
solely upon the value of Moody’s assistance to the government. See United States v. Bullard, 390
F.3d 413, 416 (6th Cir. 2004); see also United State v. Williams, 687 F.3d 283, 286 (6th Cir. 2012).
Because the district court ignored the mandatory minimum and granted a 3-level downward
adjustment for Moody’s acceptance of responsibility, Moody actually benefitted from these errors.
Most importantly, these errors do not change the fact that the mandatory minimum was still legally
the “applicable guideline range,” and Moody is accordingly ineligible for a reduction.
Moody points out that since the mandatory minimum was never mentioned at his sentencing
hearing, it was not entirely accurate for the district court to say in its order denying his motion for
a sentence reduction that “[Moody’s] guideline range was determined pursuant to 5G1.1(b) of the
U.S.S.G.,” which provides that when a mandatory minimum exceeds the guideline range the
mandatory minimum becomes the guideline sentence. Moody argues that the guidelines are
advisory, the district court chose not to apply § 5G1.1(b), and therefore it cannot be applied now.
For support, he points to the rule that in determining whether a defendant is eligible for a sentence
reduction, the court can only “determine the amended guideline range that would have been
applicable” and “shall leave all other guideline application decisions unaffected.” U.S.S.G.
§ 1B1.10(b)(1). He maintains that it is improper for us now to apply § 5G1.1(b) when it was
apparently not applied during his original sentencing.
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But the district court’s failure to invoke § 5G1.1(b) while sentencing Moody is irrelevant.
A mandatory minimum sentence is most assuredly not advisory, even if the guideline provision
directing the court to apply it is. See Dorsey v. United States, 132 S. Ct. 2321, 2327 (2012) (stating
that federal sentencing statutes “trump[] the Guidelines”). Under the statute in effect at the time,
Moody was subject to a mandatory minimum sentence which became his “applicable guideline
range” by operation of law, and no mistake by the district court can alter this reality. Moody has
already benefitted once from the district court’s sentencing errors. To grant him a sentence reduction
now would enable him to benefit twice from those same errors.
B. Factual Errors
Finally, Moody argues that we should remand this case since in its order denying his motion
for a sentence reduction the district court made several factual misstatements. Both parties recognize
that factual misstatements were made, primarily because Moody made them in his motion and the
government repeated them in its response. But correcting these misstatements would not render
Moody eligible for a sentence reduction, so a remand would be pointless.
III. Conclusion
Because Moody’s “applicable guideline range” was the mandatory minimum, it was not
reduced by Amendment 750, and the district court was correct to find him ineligible for a sentence
reduction. We therefore AFFIRM the district court’s order.
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